Nelson v. National Hockey League
MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 6/5/2017.Mailed notice.(jlj, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
LEN BOOGAARD and JOANNE BOOGAARD,
Personal Representatives of the Estate of DEREK
NATIONAL HOCKEY LEAGUE, NATIONAL
HOCKEY LEAGUE BOARD OF GOVERNORS, and
GARY B. BETTMAN,
13 C 4846
Judge Gary Feinerman
MEMORANDUM OPINION AND ORDER
Len and Joanne Boogaard, the personal representatives of the estate of Derek Boogaard,
bring this suit against the National Hockey League and its Board of Governors and
Commissioner (collectively, “NHL”), alleging tort claims connected with Boogaard’s death.
Docs. 1-1, 62, 174. (For ease of reference, and except where context requires otherwise, the
court will refer to Plaintiffs as “Boogaard.”) As matters now stand, Counts V-XII of the second
amended complaint have been dismissed, and Counts I-IV remain in the case. Docs. 168-169,
174. The NHL has moved to dismiss the remaining claims, Doc. 177, while Boogaard has
moved to remand the case to state court, Doc 182. The NHL’s motion is granted, and
Boogaard’s motion is denied.
The previous personal representative of Boogaard’s estate, Robert Nelson, filed this suit
in the Circuit Court of Cook County, Illinois. Doc. 1-1. The NHL removed the case to this court
under 28 U.S.C. § 1441 on the ground that the original complaint’s claims, which purportedly
rested on state law, were completely preempted by § 301 of the Labor Management Relations
Act (“LMRA”), 29 U.S.C. § 185, and thus in fact were federal claims. Doc. 1; see Caterpillar
Inc. v. Williams, 482 U.S. 386, 393 (1987). The court denied Boogaard’s motion to remand,
holding that at least some of his claims were completely preempted. Docs. 37-38 (reported at 20
F. Supp. 3d 650 (N.D. Ill. 2014)). Boogaard then filed an amended complaint, which set forth
eight counts. Doc. 62. After discovery, the court granted summary judgment to the NHL on all
eight counts, holding that they were completely preempted by § 301 of the LMRA and that the
§ 301 claims—which is how the preempted claims had to be characterized—were barred by the
applicable statute of limitations. Docs. 140-141 (reported at 126 F. Supp. 3d 1010 (N.D. Ill.
Boogaard moved for leave to file a second amended complaint, which set forth twelve
counts. Docs. 135, 143. The NHL opposed that motion on the ground that the second amended
complaint’s claims, like those of the first amended complaint, were completely preempted by
§ 301 of the LMRA and, as § 301 claims, were time-barred. Docs. 151-152. The court granted
in part and denied in part the motion for leave to amend. Docs. 168-169 (reported at 211 F.
Supp. 3d 1107 (N.D. Ill. 2016)). Specifically, the court held that eight of the second amended
complaint’s counts, Counts V-XII, were “essentially identical to the first amended complaint’s
eight counts … and are therefore completely preempted and time-barred for the reasons set forth
in the court’s earlier opinions.” 211 F. Supp. 3d at 1111. But the court held that portions of the
other four counts, Counts I-IV, stated non-preempted—and thus true state law—claims. Ibid.
Accordingly, the court dismissed with prejudice Counts V-XII and the completely preempted
portions of Counts I-IV; ordered the NHL to answer or otherwise plead to the surviving portions
of the complaint; and stated that if the NHL “move[s] to dismiss any of the surviving claims, [it]
should not do so on preemption grounds.” Doc. 168.
Now before the court are the NHL’s motion to dismiss the second amended complaint’s
surviving claims, Doc. 177, and Boogaard’s motion to remand the case to state court, Doc. 182.
The NHL’s Motion to Dismiss
In moving to dismiss, the NHL contends that the second amended complaint’s state law
claims—the NHL actually continues to argue that Counts I-IV include no true state law claims,
Doc. 178 at 11-17, but proceeds to assume for the sake of argument that they do—are governed
and defeated by Minnesota law. Id. at 18-27. The NHL argues in the alternative that, regardless
of which State’s law applies, Boogaard has no viable claim. Id. at 27-40.
In resolving the NHL’s Rule 12(b)(6) motion, the court assumes the truth of the operative
complaint’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N.
Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider
“documents attached to the complaint, documents that are critical to the complaint and referred
to in it, and information that is subject to proper judicial notice,” along with additional facts set
forth in Boogaard’s brief opposing dismissal, so long as those additional facts “are consistent
with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019-20 (7th Cir.
2013). The facts are set forth as favorably to Boogaard as those materials allow. See Pierce v.
Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth those facts at the pleading stage,
the court does not vouch for their accuracy. See Jay E. Hayden Found. v. First Neighbor Bank,
N.A., 610 F.3d 382, 384 (7th Cir. 2010).
Boogaard played hockey for the NHL for six years—five for the Minnesota Wild, and
one for the New York Rangers. Doc. 174 at ¶¶ 2, 11. As an “Enforcer/Fighter,” Boogaard’s
principal job during games was to fight opposing players. Id. at ¶¶ 2-3. As a result of the fights,
he suffered brain injuries, which eventually developed into chronic traumatic encephalopathy, or
“CTE,” a brain disorder characterized by deteriorating judgment, inhibition, mood, reasoning,
behavior, and impulse control. Id. at ¶¶ 4-7. Boogaard routinely suffered other painful injuries
as well, and team doctors treated his symptoms with opioids, a class of highly addictive pain
medications. Id. at ¶¶ 4, 119-122, 127-137. Boogaard became addicted to opioids, went to
rehab, relapsed, and returned to rehab. Id. at ¶¶ 138, 140, 156-160. In May 2011, while on
weekend release in Minnesota from his second stay in rehab, he accidentally overdosed on
Percocet and died. Id. at ¶¶ 164-165, 206. He was 28 years old. Id. at ¶ 1.
Counts I-II—a survival claim and wrongful death claim, respectively—rest on the
following allegations. During Boogaard’s career, the NHL cultivated a “culture of gratuitous
violence,” which caused him to get into fights, which in turn caused him to develop CTE and
become addicted to opioids, which in turn caused his death. Id. at ¶¶ 44, 75, 78. The NHL
encouraged violence by, among other things, promoting an HBO documentary glorifying the
“Broad Street Bullies,” a Philadelphia Flyers team known for fighting; creating promotional
films “that focus on the hardest hits that take place on the ice”; displaying on its website stories
about enforcers and on-ice fights “on a nightly basis”; producing on an affiliated television
network “a weekly program segment called ‘Top 10 Hits of the Week’”; and sponsoring video
games that “include[ed] fighting and vicious body checking.” Id. at ¶ 57.
Counts III-IV—also a survival claim and wrongful death claim, respectively—allege that
the NHL actively and unreasonably harmed Boogaard by implicitly communicating that head
trauma is not dangerous. The NHL communicated this message by suggesting that it was
“study[ing] … repetitive concussive and/or sub-concussive brain traumas amidst its player
population,” which caused NHL players to “reasonably believe that the NHL’s findings would
apprise them of any and all long-term risks” of playing professional hockey. Id. at ¶¶ 81, 83. It
was not until after Boogaard’s death that the NHL reported its findings. Id. at ¶ 90. By
publicizing the fact that it was studying the effects of brain trauma, the NHL’s silence on the
issue during Boogaard’s career implicitly conveyed that it had found that those effects were
minor. Id. at ¶¶ 89, 94. Boogaard relied on that implied message when he continued playing in a
way that would give him concussions. Id. at ¶ 108.
Minnesota Law Governs Boogaard’s Non-Preempted Claims
In pleading Counts I-IV, Boogaard expressly invokes Illinois and Minnesota law. Id. at
¶¶ 77, 80, 115, 118. Counts I and III—the survival claims—are brought “pursuant to Minn. Stat.
§ 573.02 and 755 ILCS 5/27-6, commonly known as the Survival Acts of the States of Minnesota
and Illinois.” Id. at ¶¶ 77, 115. Counts II and IV—the wrongful death claims—are brought
“pursuant to the Minnesota Wrongful Death Statute, Minn. Stat. § 573.02, and the Illinois
Wrongful Death Statute, 740 ILCS 180/1, et seq.,” id. at ¶¶ 80, 118. Despite invoking Illinois
and Minnesota law in the operative complaint, and despite having nearly three years to think
about his claims before moving for leave to file that complaint, Boogaard asserts for the first
time in his opposition brief that New York law applies. Doc. 185 at 13-15, 20-21. In poker, that
would be called a “tell”; as will soon become clear, the NHL’s motion to dismiss advanced
compelling arguments for dismissing Boogaard’s claims under Illinois law and particularly
Minnesota law, and Boogaard’s extraordinarily belated retreat to New York law is an obvious
signal that his lawyers no longer think much of his prospects under Minnesota or Illinois law.
Because this case was filed in Illinois, Illinois choice-of-law rules guide the inquiry into
which state law applies. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)
(“[T]he prohibition declared in Erie Railroad v. Tompkins … extends to the field of conflict of
laws.”); McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 684 (7th Cir. 2014) (“Federal
courts hearing state law claims under diversity or supplemental jurisdiction apply the forum
state’s choice of law rules to select the applicable state substantive law.”). “Illinois has adopted
the approach found in the Second Restatement of Conflict of Laws.” Barbara’s Sales, Inc. v.
Intel Corp., 879 N.E.2d 910, 919 (Ill. 2007). Under the Second Restatement, the law of the State
that “has the most significant relationship to the occurrence and the parties” applies.
Restatement (Second) of Conflict of Laws § 145(1) (1971); see also Kamelgard v. Macura, 585
F.3d 334, 341 (7th Cir. 2009) (observing that “most states, including Illinois, nowadays apply the
law of the state that has the ‘most significant relationship’ to the claim”). In tort cases, the “most
significant relationship” analysis turns on: “(a) the place where the injury occurred, (b) the place
where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of
incorporation and place of business of the parties, and (d) the place where the relationship, if
any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145(2); see
also Townsend v. Sears, Roebuck & Co., 879 N.E.2d 893, 901 (Ill. 2007) (same). “Under this
test, the law of the place of injury controls unless Illinois has a more significant relationship with
the occurrence and with the parties.” Tanner v. Jupiter Realty Corp., 433 F.3d 913, 916 (7th Cir.
2006). As the Seventh Circuit has explained: “[I]n the absence of unusual circumstances, the
highest scorer on the ‘most significant relationship’ test is—the place where the tort occurred. …
Victim location and injurer location are valid considerations. But when they point to two
different jurisdictions they cancel out, leaving the place where the injury (and hence the tort)
occurred as the presumptive source of the law governing the accident.” Abad v. Bayer Corp.,
563 F.3d 663, 669-70 (7th Cir. 2009).
Minnesota has the most significant relationship to the occurrence and the parties by a
wide margin. The first and most important consideration, where the injury occurred, is
Minnesota, which is the place of Boogaard’s death and where he spent the bulk of his NHL
career. Doc. 174 at ¶¶ 2, 11, 164-165. This makes Minnesota the “presumptive source” of
governing law. Abad, 563 F.3d at 670.
As to the second factor, Minnesota is the primary location where the conduct causing
Boogaard’s injury occurred. Minnesota is where Boogaard spent the bulk of his career, Doc. 174
at ¶¶ 2, 11; where replays of his fights were routinely shown, id. at ¶ 65; where doctors
prescribed and administered pain medications, id. at ¶¶ 127, 130-131, 242-244; where he
purchased drugs, id. at ¶ 184; where he transported drugs that he had purchased elsewhere, id. at
¶ 199; and where the drugs that ended his life were ingested, id. at ¶¶ 164-165. Boogaard
occasionally got into on-ice fights, was given pain medications, and purchased drugs in other
States, id. at ¶¶ 143, 156, 199, 242-244, 246, but those isolated instances do not outweigh the far
more substantial Minnesota contacts. The operative complaint’s allegations do not support
Boogaard’s argument in his opposition brief that the conduct causing his injuries occurred “most
notably” in the NHL’s New York office. Doc. 185 at 13.
The third consideration, the location of the parties, does not weigh strongly in any State’s
favor. The NHL is based in New York but has member teams in many States, including
Minnesota and Illinois. Doc. 174 at ¶¶ 11-12; Doc. 185 at 13. Boogaard lived primarily in
Minnesota and for a short time in New York during his NHL career, and his domicile when he
died remains somewhat uncertain but probably was Minnesota. Doc. 174 at ¶¶ 2, 11; Doc. 185 at
13 (admitting that, during the year he played for the New York Rangers, Boogaard “maintained
property in Minnesota”); 20 F. Supp. 3d at 652 n.* (“Boogaard likely was a Minnesota citizen
when he died.”). Finally, the fourth factor, the place where the parties’ relationship was
centered, favors Minnesota because Boogaard spent the vast majority of his career as a member
of the NHL’s Minnesota team. Doc. 174 at ¶¶ 2, 11.
Illinois law requires the court to consider those contacts, which point very strongly
toward Minnesota, “in light of the general principles embodied in § 6” of the Restatement.
Townsend, 879 N.E.2d at 906. Those principles are:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of
those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Restatement (Second) of Conflict of Laws § 6.
Those principles provide no basis to supplant Minnesota law. The NHL contends,
reasonably, that the § 6 factors favor Minnesota law. Doc. 178 at 23; Doc. 195 at 16-19. In his
opposition brief, Boogaard states that those factors favor Illinois or New York law, Doc. 185 at
14-15, but he fails to make a legal argument or cite any legal authority to support his position,
thus forfeiting the point. See G&S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 534, 538 (7th Cir.
2012) (“We have repeatedly held that a party waives an argument by failing to make it before the
district court. That is true whether it is an affirmative argument in support of a motion to dismiss
or an argument establishing that dismissal is inappropriate.”) (citations omitted).
For all of these reasons, Minnesota law governs Boogaard’s non-preempted claims.
Boogaard Fails to State a Claim Under Minnesota Law
As the operative complaint acknowledges, Doc. 174 at ¶¶ 77, 80, 115, 118, the Minnesota
statute that governs Boogaard’s survival and wrongful death claims is Minn Stat. § 573.02. That
statute provides, in relevant part:
Subd. 1. Death action. When death is caused by the wrongful act or
omission of any person or corporation, the trustee appointed as provided in
subdivision 3 may maintain an action therefor if the decedent might have
maintained an action, had the decedent lived, for an injury caused by the
wrongful act or omission. … An action to recover damages for a death caused
by an intentional act constituting murder may be commenced at any time after
the death of the decedent. Any other action under this section may be
commenced within three years after the date of death provided that the action
must be commenced within six years after the act or omission. …
Subd. 2. Injury action. When injury is caused to a person by the wrongful
act or omission of any person or corporation and the person thereafter dies
from a cause unrelated to those injuries, the trustee appointed in subdivision 3
may maintain an action for special damages arising out of such injury if the
decedent might have maintained an action therefor had the decedent lived.
Subd 3. Trustee for Action. Upon written petition by the surviving spouse
or one of the next of kin, the court having jurisdiction of an action falling
within the provisions of subdivisions 1 or 2, shall appoint a suitable and
competent person as trustee to commence or continue such action and obtain
recovery of damages therein. The trustee, before commencing duties shall file
a consent and oath. Before receiving any money, the trustee shall file a bond
as security therefor in such form and with such sureties as the court may
Minn. Stat. § 573.02 (emphases added). Section 573.02(1) is the wrongful death provision,
§ 573.02(2) is the survival provision, and § 573.02(3) concerns trustees. The NHL argues,
correctly, that Boogaard’s claims founder on the trustee requirement.
The emphasized statutory text makes clear that § 573.02 claims must be brought by a
court-appointed trustee. Consistent with the text, the Minnesota Supreme Court has held that
“[a] plaintiff’s failure to commence a wrongful death action as a court-appointed trustee …
precludes her from maintaining the action.” Ortiz v. Gavenda, 590 N.W.2d 119, 120 (Minn.
1999) (affirming the dismissal of a widow’s § 573.02 claim on behalf of her deceased husband
because she had not been appointed as a trustee); Sheeley v. City of Austin, 2015 WL 506293, at
*3 (D. Minn. Feb. 6, 2015) (“Maintaining an action under subdivision 1 or 2 of Minn. Stat.
§ 573.02 requires a trustee be appointed to sustain the decedent’s action.”).
The two plaintiffs here, Len and Joanne Boogaard, are Boogaard’s “personal
representatives,” not “trustees.” Doc. 174 at ¶ 26 (“LEN BOOGAARD and JOANNE
BOOGAARD were appointed … as Successor Personal Representatives of the Estate of DEREK
BOOGAARD … .”); Doc. 185 at 5, 18 (Boogaard acknowledging that Len and Joanne Boogaard
were appointed “Personal Representatives” and not trustees). (The same was true for the
previous plaintiff, Robert Nelson. Doc. 1-1 at 2.) Therefore, Boogaard’s claims, which arise
under § 573.02, are not viable under Minnesota law. See Ortiz, 590 N.W.2d at 123-24 (“The
appointment of a trustee under Minn. Stat. § 573.02 is an exercise of the fundamental legal
principle that those entitled to recovery as a result of the wrongful death shall be represented by
the trustee without compromise.”); Regie de l’assurance Auto. du Quebec v. Jensen, 399 N.W.2d
85, 92 (Minn. 1987) (holding that a § 573.02 suit without appointment of a trustee is a “legal
nullity”); Steinlage v. Mayo Clinic Rochester, 435 F.3d 913, 915 (8th Cir. 2006) (“[U]pon death,
the right to … institute new actions based on personal injury belong[s] to the wrongful death
trustee.”); Sheeley, 2015 WL 506293, at *3 (“[E]state representatives are not the equivalent to a
wrongful death trustee.”).
In Boogaard’s view, the question whether Len and Joanne can bring this suit is governed
by Rule 17(b). Doc. 185 at 15-16. Rule 17(b) states, in relevant part, that “[c]apacity to sue or
be sued is determined … by the law of the state where the court is located.” Fed. R. Civ. P.
17(b). This court is located in Illinois, and from that premise, Boogaard concludes that Illinois
law governs whether Len and Joanne Boogaard can bring this suit. That argument
misunderstands the scope of Rule 17(b).
The capacity to sue or be sued under Rule 17(b) is a question of a party’s “legal
existence”—whether it may act as a party in any type of litigation—and not whether it has a right
of action under a particular statute. DeGenova v. Sheriff of DuPage Cnty., 209 F.3d 973, 976
n.2 (7th Cir. 2000) (applying Rule 17(b) to determine whether the defendant was “a suable
entity”); see also Teamsters Local Union No. 727 Health & Welfare Fund v. L & R Grp. of Cos.,
844 F.3d 649, 651 (7th Cir. 2016) (“Rule 17(b) says that only persons or entities with the
capacity to sue or be sued may be litigants.”). Len and Joanne’s status as personal
representatives does not deprive them of the “capacity to sue” under Rule 17(b). See Smith v.
United States, 702 F.2d 741, 742-43 (8th Cir. 1983) (affirming the district court’s judgment in a
suit brought by a personal representative seeking a refund of tax penalties assessed against the
decedent’s estate); Prof’l Fiduciary, Inc. v. Silverman, 713 N.W.2d 67, 68 (Minn. App. 2006)
(holding that a “personal representative can assert a malpractice claim against the decedent’s
former attorney”). But notwithstanding their legal capacity to sue or be sued, Len and Joanne
quite clearly lack a viable claim under § 573.02. See Ortiz, 590 N.W.2d at 123-24; Jensen, 399
N.W.2d at 92; Sheeley, 2015 WL 506293, at *3.
It is too late for Boogaard to cure this defect by having Len and Joanne appointed as
trustees. A wrongful death action under § 573.02(1) “requires the appointment of a trustee prior
to the expiration of the 3-year statute of limitations,” which begins to run on the date of the
decedent’s death. Ortiz, 590 N.W.2d at 123. “Unless a cause of action has been legally asserted
by a duly appointed trustee prior to the expiration of the three year commencement of suit
limitation … , any subsequent attempted amendment after the expiration of the limitation period
to cure the defect will not ‘relate back’ so as to revive the action.” Jensen, 399 N.W.2d at 86;
see also Ortiz, 590 N.W.2d at 123 (discussing Minnesota courts’ “consistent interpretation of
Minn. Stat. § 573.02’s time limit as a strict condition precedent to maintaining a wrongful death
action.”); Bonhiver v. Fugelso, Porter, Simich & Whiteman, Inc., 355 N.W.2d 138, 142 (Minn.
1984) (“Satisfaction of the limitation period is an absolute prerequisite to bringing suit.”);
Berghuis v. Korthius, 37 N.W.2d 809, 810 (Minn. 1949) (“This period fixing the time within
which the right of action for wrongful death may be exercised is not an ordinary statute of
limitations. It is considered a condition precedent to the right to maintain the action, and the
lapse of such period is an absolute bar.”); Ariola v. City of Stillwater, 889 N.W.2d 340, 348
(Minn. App. 2017) (observing that the three-year limitations period “is jurisdictional, requiring
dismissal for failure to comply and does not have flexible parameters permitting it to be ignored
if its application is too technical”) (internal quotation marks and alterations omitted). Boogaard
died in May 2011, Doc. 174 at ¶ 165, and no trustee was appointed in the three years that
followed. That necessarily means that Boogaard’s § 573.02(1) wrongful death claims can no
longer be pursued, even if Len and Joanne were to be appointed as trustees in the future. See
Miklas v. Parrott, 684 N.W.2d 458, 464 (Minn. 2004) (“Because a trustee was not appointed
within the 3-year time limit of Minn. Stat. § 573.02, appellant cannot show a viable underlying
claim of wrongful death.”); Ortiz, 590 N.W.2d 119, 120, 123 (holding that “an amendment to the
pleadings to bring the [§ 573.02(1)] action as trustee after the statutory filing period had expired
could not relate back to the original filing,” because “no matter how compelling the
circumstances for equitable intervention, equity cannot breathe life into a claim that has never
been anything more than a ‘nullity’”); Sheeley, 2015 WL 506293, at *4 (“Minn. Stat. § 573.02
… requires the appointment of a trustee prior to the expiration of the 3-year statute of limitations,
not the mere filing of a petition therefor within the statutory period.”); Block v. Toyota Motor
Corp., 5 F. Supp. 3d 1047, 1056, 1059 (D. Minn. 2014) (noting that “courts must strictly
construe the wrongful death statute’s requirements,” which “include the wrongful death statute
of limitations,” and applying the three-year statute of limitations set forth in § 573.02(1)).
Section 573.02(2) does not expressly impose a three-year statute of limitations on
survival actions. That said, Len and Joanne’s inexcusable and inexplicable delay in seeking
appointment as trustees has forfeited their ability to do so for purposes of saving Boogaard’s
survival claims in this suit. Len and Joanne substituted in as party plaintiffs in May 2014, Doc.
62, and were alerted to the trustee issue three years ago, in June 2014, when the NHL first
argued that Boogaard had no claim because they had not been appointed as trustees, Doc. 64 at
3-7. Boogaard’s survival claims are currently a “legal nullity” under Minnesota law, Jensen, 399
N.W.2d at 92, and now, more than six years after his death and three years after the NHL raised
the trustee problem, it is too late for Len and Joanne to start afresh.
Even if Boogaard’s survival claims were not barred by Len and Joanne’s failure to seek
and obtain appointment as trustees, they would be defeated on a separate ground. Section
§ 573.02(2) provides for a survival action based on injuries to the decedent only where “the
person thereafter dies from a cause unrelated to those injuries.” Minn. Stat. § 573.02(2)
(emphasis added). The NHL contends that Boogaard’s survival claims cannot proceed because
the operative complaint alleges that the NHL’s wrongful acts affirmatively caused Boogaard’s
death, which means that those acts are the antithesis of acts that are “unrelated” to his injuries.
Doc. 178 at 27. The NHL is correct. See Kenna v. So-Fro Fabrics, Inc., 18 F.3d 623, 630 (8th
Cir. 1994) (“The district court found, as a matter of law, that So-Fro’s alleged negligence was
not causally connected to Ms. Kenna’s death. In light of this finding, the district court should
have allowed Mr. Kenna to proceed with the survival action, because Minnesota allows a
personal injury action to survive an individual’s death if the person dies from a cause unrelated
to those injuries.”) (internal quotation marks omitted); Sheeley, 2015 WL 506293, at *3
(“[Section 573.02(2)] allows the appointed trustee to recover special damages when an
individual suffers injury by a wrongful act or omission, but later dies from unrelated causes.”).
In any event, Boogaard offers no response to the NHL’s argument, thereby forfeiting the point
and, along with it, the survival claims in Counts I and III. See G&S Holdings, 697 F.3d at 538;
Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2010) (“We apply [the forfeiture] rule
where a party fails to develop arguments related to a discrete issue, and we also apply that rule
where a litigant effectively abandons the litigation by not responding to alleged deficiencies in a
motion to dismiss.”).
Boogaard Fails to State a Claim Under Any State Law
The court adds for good measure that dismissal is warranted no matter which state law
applies. As noted, Counts I and II are based on the NHL’s alleged promotion of violence, while
Counts III and IV are based on the NHL’s alleged negligent misrepresentations regarding the
risks of head trauma. Doc. 174 at ¶¶ 33-118. According to the NHL, Counts I and II sound in
negligence, whose elements are: “(1) the existence of a legal duty, (2) a breach of that duty, (3)
causation, and (4) injury.” Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 888 (Minn.
2010); see also Krywin v. Chi. Transit Auth., 938 N.E.2d 440, 446 (Ill. 2010) (same); Pasternack
v. Lab. Corp. of Am. Holdings, 59 N.E.3d 485, 490 (N.Y. 2016) (same). Also according to the
NHL, Counts III and IV sound in negligent misrepresentation, whose elements include: (1) a
duty owed to the plaintiff by the defendant; (2) the defendant’s breach of that duty by
communicating false information; and (3) the plaintiff’s reliance on the incorrect information.
See Williams v. Smith, 820 N.W.2d 807, 815 (Minn. 2012); Jane Doe-3 v. McLean Cnty. Unit
Dist. No. 5 Bd. of Dirs., 973 N.E.2d 880, 889 (Ill. 2012); Mandarin Trading Ltd. v. Wildenstein,
944 N.E.2d 1104, 1109 (N.Y. 2011).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks omitted). The NHL’s initial brief argued that
Boogaard failed to allege facts that satisfy the elements of negligence and negligent
misrepresentation. Doc. 178 at 27-40. Specifically, the NHL contended that Boogaard’s
promotion of violence claims in Counts I-II do not plausibly allege (1) that the NHL had a legal
duty not to promote violence or (2) that the NHL’s conduct proximately caused Boogaard’s
injuries. Id. at 30-34. The NHL further contended that Boogaard’s negligent representation
claims in Counts III-IV do not plausibly allege (1) that the NHL had a duty to study or disclose
the long-term effects of concussions, (2) that the NHL breached that duty by communicating
false information, or (3) that Boogaard relied on that information. Id. at 35-40. Those arguments
were eminently reasonable, yet Boogaard utterly and inexplicably failed to address them, thereby
forfeiting both sets of claims. See G&S Holdings, 697 F.3d at 538; Alioto, 651 F.3d at 721 (“Our
system of justice is adversarial, and our judges are busy people. If they are given plausible
reasons for dismissing a complaint, they are not going to do the plaintiff’s research and try to
discover whether there might be something to say against the defendants’ reasoning.”) (internal
quotation marks omitted); Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010) (“We have made
clear in the past that it is not the obligation of this court to research and construct legal arguments
open to parties, especially when they are represented by counsel, and we have warned that
perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent
authority, are waived.”) (internal quotation marks and alterations omitted); Lekas v. Briley, 405
F.3d 602, 614-15 (7th Cir. 2005) (“While Lekas alleged in his complaint that his segregation was
in retaliation for his filing of grievances, he did not present legal arguments or cite relevant
authority to substantiate that claim in responding to defendants’ motion to dismiss,” and
“[a]ccordingly, [his] retaliation claim has been waived.”).
Boogaard’s Motion to Remand
Shortly after the NHL filed the present motion to dismiss, Boogaard filed a motion to
remand this case to state court pursuant to 28 U.S.C. § 1367(c)(1) and (c)(3). Docs. 182-183.
Those provisions state: “The district courts may decline to exercise supplemental jurisdiction
over a claim under subsection (a) if … (1) the claim raises a novel or complex issue of State law,
… [or] (3) the district court has dismissed all claims over which it has original jurisdiction.” 28
U.S.C. § 1367(c)(1), (3). According to the Seventh Circuit:
While a district court may relinquish its supplemental jurisdiction if one of the
conditions of § 1367(c) is satisfied, it is not required to do so. … A district
court deciding whether to retain jurisdiction pursuant to the factors set forth in
§ 1367(c) should consider and weigh in each case, and at every state of the
litigation, the values of judicial economy, convenience, fairness, and comity.
That the jurisdictional hook is eliminated before trial at best only
preliminarily informs the balance; the nature of the state law claims at issue,
their ease of resolution, and the actual, and avoidable, expenditure of judicial
resources can and should make the difference in a particular case.
Hansen v. Bd. of Trs. of Hamilton Se. Sch. Corp., 551 F.3d 599, 608 (7th Cir. 2008) (internal
quotation marks and citations omitted).
Remand is not justified under subsection (c)(1) because Boogaard’s state law claims do
not raise any state law issue that is “novel or complex.” Rather than point to any particular state
law issue, Boogaard contends that “[t]he NHL’s utilization of twenty-five (25) pages in
explaining its seemingly complex arguments tellingly previews for this Court the myriad
‘complex issues’ it intends to raise to defend against Plaintiffs’ state law claims.” Doc. 183 at 3.
Boogaard greatly overstates the novelty or complexity of the state law principles that defeat his
claims. In fact, the court dismissed those claims, on independent grounds, by applying settled
law and without confronting complicated state law questions. See Ervin v. OS Rest. Servs., 632
F.3d 971, 980 (7th Cir. 2011) (“The plaintiffs’ claims … do not present any complex state-law
issues, and so subsection (c)(1) should not be a problem.”). And even if the state law claims
were complex, the claims arise under Minnesota law, and for purposes of § 1367(c)(1), Illinois
state courts have no advantage over this court in interpreting the law of a different State. See
David v. Signal Int’l, LLC, 37 F. Supp. 3d 822, 830 (E.D. La. 2014) (rejecting the applicability of
§ 1367(c)(1) where the “state law claims [were] pled under Indian law, Texas law, and
Mississippi law”); Shovah v. Mercure, 879 F. Supp. 2d 416, 422 & n.3 (D. Vt. 2012) (same,
where the court assumed that the claims were governed by New York law).
Nor is remand justified under § 1367(c)(3). True, all of Boogaard’s federal claims have
been dismissed, and only state law claims among non-diverse parties remain. 20 F. Supp. 3d at
652 n.* (“With Minnesota citizens on both sides of the case, there is no diversity jurisdiction.”).
Under § 1367(c)(3), “[a]s a general matter, when all federal claims have been dismissed prior to
trial, the federal court should relinquish jurisdiction over the remaining pendent state claims.”
Williams v. Rodriguez, 509 F.3d 392, 404 (7th Cir. 2007); see also Dietchweiler by Dietchweiler
v. Lucas, 827 F.3d 622, 631 (7th Cir. 2016) (“[W]hen the federal claims are dismissed before
trial, there is a presumption that the court will relinquish jurisdiction over any remaining state
law claims.”). The general rule has three exceptions: “when the refiling of the state claims is
barred by the statute of limitations; where substantial judicial resources have already been
expended on the state claims; and when it is clearly apparent how the state claim is to be
decided.” Williams, 509 F.3d at 404; see also RWJ Mgmt. Co. v. BP Prods. N. Am., Inc., 672
F.3d 476, 480 (7th Cir. 2012); Williams Elecs. Games, Inc. v. Garrity, 479 F.3d 904, 907 (7th
The third exception applies here because the resolution of Boogaard’s state law claims is
“clearly apparent.” Williams, 509 F.3d at 404. As noted, there are independent grounds for
dismissing those claims—that Len and Joanne Boogaard have not been named trustees, and that
Boogaard has failed to respond to the NHL’s substantive challenges to his claims. That neither
ground requires the application of Illinois law—the second ground implicated Illinois law, but
the court’s rejection of Boogaard’s Illinois claims (assuming they were, in fact, Illinois claims)
turned on forfeiture, not a detailed analysis of Illinois law—eliminates the “paramount concerns”
of “respect for the state’s interest in applying its own law, along with the state court’s greater
expertise in applying state law.” Huffman v. Hains, 865 F.2d 920, 923 (7th Cir. 1989). In the
end, this is a case where “the values of judicial economy, convenience, fairness, and comity” are
best served by retaining supplemental jurisdiction, City of Chicago v. Int’l Coll. of Surgeons, 522
U.S. 156, 173 (1997), which the court has elected to do in its “broad discretion,” Hansen, 551
F.3d at 608 (affirming the district court’s decision to retain jurisdiction where “the correct
disposition of the state claims against HSSC is clear and does not entangle the federal courts in
difficult issues of state law”); see also Wright v. Associated Ins. Cos., 29 F.3d 1244, 1252 (7th
Cir. 1994) (“[R]etention of a state-law claim is appropriate when the correct disposition of the
claim is so clear as a matter of state law that it can be determined without further trial
proceedings and without entanglement with any difficult issues of state law.”) (internal quotation
The NHL’s motion to dismiss is granted, and Boogaard’s motion to remand is denied.
The dismissal of Boogaard’s claims is with prejudice. Boogaard has had three opportunities to
plead his claims, with one coming after the NHL was granted summary judgment, and those
three are enough. See Agnew v. NCAA, 683 F.3d 328, 347-48 (7th Cir. 2012) (“By our count,
plaintiffs had three opportunities to identify a relevant market in which the NCAA allegedly
committed violations of the Sherman Act. … We therefore cannot find that the district court
abused its discretion in dismissing plaintiffs’ claims with prejudice.”); Stanard v. Nygren, 658
F.3d 792, 800 (7th Cir. 2011) (“The court’s decision to dismiss the case with prejudice was also
eminently reasonable. Again, this was Maksym’s third attempt to plead properly, and he was
still far from doing so.”); Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010)
(“Generally, if a district court dismisses for failure to state a claim, the court should give the
party one opportunity to try to cure the problem, even if the court is skeptical about the prospects
for success.”) (emphasis added). Moreover, by failing to respond on the merits to the NHL’s
argument that the second amended complaint did not plead viable state law negligence and
misrepresentation claims, Boogaard forfeited his claims, and a plaintiff who forfeits his claims
does not get a chance to replead. See Baker v. Chisom, 501 F.3d 920, 926 (8th Cir. 2007)
(affirming the dismissal with prejudice of a claim where the plaintiff “failed to defend that claim
or to urge that it be dismissed without prejudice”). Finally, in his opposition brief, Boogaard did
not request a chance to replead in the event the court dismissed his claims. See Johnson v.
Wallich, 578 F. App’x 601, 603 (7th Cir. 2014) (“Johnson also argues that the district court
should have allowed him to amend his complaint to correct any deficiencies. But Johnson did
not request leave to amend his complaint, and the district court cannot abuse its discretion by
denying leave to amend if Johnson never sought it.”); James Cape & Sons Co. v. PCC Constr.
Co., 453 F.3d 396, 400-01 (7th Cir. 2006) (rejecting the plaintiff’s argument that the district
court erred in dismissing its complaint with prejudice, rather than without prejudice and with
leave to amend, where the plaintiff did not properly request leave to amend).
Judgment will be entered in favor of the NHL and against Boogaard. Although judgment
is entered in the NHL’s favor, this opinion should not be read to commend how the NHL handled
Boogaard’s particular circumstances—or the circumstances of other NHL players who over the
years have suffered injuries from on-ice play. Cf. In re NHL Players’ Concussion Injury Litig.,
MDL 2551 (D. Minn.) (considering claims similar to Boogaard’s claims in this case).
June 5, 2017
United States District Judge
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